Citation Nr: 9837482
Decision Date: 12/23/98 Archive Date: 12/30/98
DOCKET NO. 97-23 475 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. J. Drucker, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1975 to
July 1977 and from April 1979 to March 1981. This matter
comes to the Board of Veteransí Appeals (Board) on appeal
from a March 1997 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan.
The Board notes that, in an unappealed October 1984 rating
decision, the RO denied entitlement to service connection for
schizophreniform disorder and anti-social personality.
Thereafter, the veteran repeatedly sought to reopen his
claim, including in an unappealed October 1991 RO decision
that denied service connection for an acquired psychiatric
disorder. In March 1997, upon receipt of additional medical
evidence, the RO evidently reopened the veteranís claim, but
determined that service connection for an acquired
psychiatric disorder was still not warranted. 38 C.F.R.
ß 3.156 (1998). See Hodge v. West, No. 98-7017 (Fed.Cir.
Sept. 16, 1998). As such, the Board will review the
veteranís claim of entitlement to service connection for an
acquired psychiatric disorder on a de novo basis.
In the interest of due process, in July 1998, the Board
requested a medical opinion, pursuant to 38 U.S.C.A. ß 7109
and as set forth in a designated Veterans Health
Administration (VHA) Directive, in response to the veteranís
claim of entitlement to service connection for an acquired
psychiatric disorder. See 38 U.S.C.A. ß 7109(a) (West 1991)
and 38 C.F.R. ß 20.901 (1998). See generally Wray v. Brown,
7 Vet. App. 488, 493 (1995). In August 1998, the Board
received the opinion and, later that month, the veteran and
his representative were given an opportunity to present
additional argument. In December 1998, they provided a
written response with additional medical evidence and the
veteran waived consideration of the new evidence by the RO.
See 38 C.F.R. ß 20.1304 (1998).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends he has an acquired psychiatric disorder,
diagnosed as bipolar disorder, that originated during his
periods of active military service. Reference is made to the
evidence of record and a favorable determination is
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteranís claim for service
connection for an acquired psychiatric disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteranís appeal has been obtained by
the RO.
2. An acquired psychiatric disorder was not present in
service or manifested within one year thereafter, and any
current psychiatric disorder is not shown to be related to
service or any incident of service.
CONCLUSION OF LAW
An acquired psychiatric disorder was not incurred in service,
nor may a bipolar disorder be presumed to have been incurred
in service. 38 U.S.C.A. ßß 1101, 1110, 1112, 1113, 1131,
1137, 5107 (West 1991 & Supp. 1998); 38 C.F.R. ßß 3.303,
3.307, 3.309 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking service connection for an acquired
psychiatric disorder. The veteranís claim is well grounded
within the meaning of 38 U.S.C.A. ß 5107(a). That is, he has
presented a claim that is plausible. The Board is also
satisfied that all relevant facts have been properly
developed and no further assistance to the veteran is
required to comply with the duty to assist mandated by
38 U.S.C.A. ß 5107(a).
Factual Background
When examined for entrance into service in January 1975, no
psychiatric disorder was reported and the veteran was found
qualified for active service. Service medical records show
that in August 1976, the veteran was psychiatrically
hospitalized. He reported that, after being assigned to
Alaska three months earlier, he became lonely and depressed
and began to drink up to a quart of rum a day. After being
on leave at home, in Michigan, the veteran became agitated
and obsessed that his wife was cheating on him. Upon his
return to Alaska, he sought psychiatric help and it was
determined that he should return to the United States to
received marital counseling. He was sent to a naval hospital
near his home and admitted with a diagnosis of obsessive
compulsive neurosis, severe. The final diagnosis was acute
situational reaction manifested by anxiety, increased
alcoholic abuse and paranoid ideation. Immature personality
was also noted. Joint family counseling was recommended. A
September 1976 Medical Board report diagnosed acute
situational reaction with recommendations that the veteran be
sent to six-months limited duty and assigned to an area where
he and his wife could receive joint family counseling with
reevaluation in six months to determine his fitness for duty.
A May 1977 Medical Board report diagnosed acute situational
reaction, resolved. The veteran described lessened marital
discord and said he had a serious drinking problem that
worsened while he was stationed in Alaska. He and his wife
received counseling from minister that was helpful and the
veteran was enjoying his status in the Navy. He admitted to
drinking occasionally but felt he was not an alcoholic,
although he had a drinking problem that was under control.
There was no evidence of psychotic disorder or paranoid
ideation. It was recommended that he be returned to full
duty. When examined for discharge in June 1977, there was no
report of psychiatric abnormality and the veteran described
himself as in good health. According to a July 1977 Report
of Enlisted Performance Evaluation, the veteran was described
as performing his assigned duties well and with serious
purpose.
In May 1978, the veteran underwent a psychiatric examination,
evidently in connection with his naval reserve service, and
reported two arrests for driving while intoxicated: one in
December 1977 and one several weeks earlier. There was no
finding of psychosis or mood disorder. The impression was
status post situational depression with projection, resolved,
and the veteran was found qualified.
An April 1979 entrance examination did not describe a
psychiatric abnormality and the veteran was found qualified
for active service. The veteranís Report of Enlisted
Performance Evaluation from May 1979 to January 1980
described him as a misfit and unsuitable for military
service. His conduct was completely unsatisfactory and
detrimental to good order and discipline. The veteran was a
deserter several times and had alcohol problem.
In November 1979, the veteran was referred for evaluation for
chronic alcohol abuse. According to the clinical record, he
started to drink at age 13 and began to drink excessively at
age 19. The veteran admitted getting drunk four nights a
week, and said he consumed up to one quart of rum per day.
Alcohol caused his divorce and caused family, social and work
problems. He experienced loss of control and blackouts and
gulped drinks. The veteran had two arrests for driving while
intoxicated (in November 1977 and April 1979) and three
unauthorized absences since returning to the navy, most
recently six months earlier. The impression was alcoholism.
According to a December 1979 clinical entry, the veteran was
treated for a head injury sustained in a local bar and the
record reflects his inability and/or refusal to participate
in his own recovery. In January 1980, the veteran underwent
a drug abuse evaluation and acknowledged having used alcohol,
phencyclidine hydrochloride (PCP), lysergic acid diethylamide
(LSD), marijuana, speed and cocaine. A psychiatric
evaluation performed the same day reported the veteranís
multiple administrative, disciplinary and legal problems and
his hallucinogenic drug use, but found no evidence of
schizophrenia. He was not considered psychotic.
Thereafter, the record reveals that the veteran left the
Naval Rehabilitation Center and went on unauthorized leave.
He was admitted to the Naval Regional Medical Center, in
Great Lakes, Illinois, in October 1980, as a transfer from a
VA hospital, with an admitting diagnosis of schizophreniform
psychosis with depression. The record indicates that he
tried to drown himself in response to hearing voices. He had
been away without leave (AWOL) for approximately fifteen
months and said he drank the equivalent of one fifth of
alcohol per day. The veteran said he had always been a
failure and tried to drown his problems in alcohol. He
stopped drinking about six weeks prior to admission to the VA
hospital. The final diagnosis was schizophreniform disorder,
treated, improved and manifested by auditory hallucinations,
loss of reality testing, persecutory delusions, suicide
attempts and poor judgment. Avoidant personality, chronic
and severe and alcohol dependence, in remission, were also
diagnosed. The record further indicates that the veteranís
schizophreniform disorder occurred during a time when he was
on deserter status. His psychotic illness, according to a
Medical Board, did not occur in the line of duty and was the
result of the veteranís misconduct. The Medical Board
recommended that the veteran be transferred to a VA hospital
for further care.
According to a January 1981 VA medical record, the veteran
was transferred to a VA medical center from the Naval
Regional Medial Center. Upon arrival at the VA hospital, he
was observed to have good contact with reality and be well
oriented. The veteran refused to sign a formal voluntary
admission paper and was not considered committable at the
time. The final diagnosis was schizophreniform disorder, in
remission, and his discharge was described as irregular. A
separation examination report is not of record but, according
to the veteranís Report of Transfer or Discharge (DD 214),
the narrative reason for his March 1981 discharge was
physical disability incurred during period of unauthorized
absence.
Post service, private and VA medical records, statements and
examination reports, dated from July 1981 to November 1998,
are of record and reflect that VA hospitalized the veteran
five times between July 1981 and January 1984 for treatment
of alcohol and drug abuse. A psychotic disorder or mood
disorder was not diagnosed.
VA hospitalized the veteran several times in 1984 and 1985
and variously diagnosed impulse control disorder, antisocial
personality disorder and drug overdose. According to VA
hospital records dated in March 1987, the veteran was
voluntarily admitted for substance abuse problems and gave a
history of being diagnosed with paranoid schizophrenia and
later bipolar disorder at another VA facility. VA outpatient
records dated in February 1988 include diagnoses of bipolar
disorder and history of alcohol and drug abuse.
Private community health center treatment records, dated from
April 1992 to June 1995, indicate that the veteranís primary
disabilities were explosive personality and bipolar affective
disorder. According to Michigan state psychiatric hospital
records, dated in May and August 1995, the veteran was
hospitalized because of hyperactivity, agitation, threatening
behavior and grandiose delusions and diagnosed with bipolar
disorder, mixed.
A November 1995 VA psychiatric examination report reveals
that the veteran described emotional and mental difficulties
while stationed in Alaska and said that he was diagnosed with
avoidant personality paranoid schizophrenia. He reentered
service in 1979 and was assigned to shipboard, which he did
not like. Thereafter, the veteran went AWOL, had a nervous
breakdown and was admitted to a VA hospital. While
hospitalized, he stated that naval authorities returned him
to the psychiatric unit at the naval hospital and he
continued there in hospital residence for approximately three
months and then returned to the VA medical center where he
was discharged to his familyís custody. The VA examiner
diagnosed bipolar disorder, depressed, based upon depressed
mood, irritability, sleep disturbances, fearful anxious
affect, secondary diagnosis was substance abuse-alcohol in
remission.
In July 1998, the veteranís case was referred to the acting
chief of staff of a VA medical center, for a VHA opinion as
to the likelihood that the veteranís currently diagnosed
psychiatric condition, bipolar disorder, was manifested in
service or was related to military service. In her lengthy
August 1998 letter, a VA staff psychiatrist who reviewed the
veteranís claims folder and his medical records, concluded
that his service medial records documented long-standing drug
and alcohol dependence dating from 1977 that worsened during
the his second period of active duty. According to the
psychiatrist, there was no record of the extent of veteranís
drug and alcohol use while on unauthorized leave, but he used
drugs and alcohol heavily when last seen in service in
January 1980. In her opinion, it was highly likely that the
veteran continued to use drugs and alcohol continuously,
based on the information of his drug and alcohol use prior to
unauthorized absence. She commented that the veteranís
diagnosis of schizophreniform disorder in 1981 was found to
be in remission at the time of discharge from the Naval
Regional Medial Center. The VA psychiatrist concluded that
his bipolar disorder, first diagnosed in 1986-1987, developed
in the context of long standing and heavy alcohol and drug
use. She said these substances can all induce psychotic
disorders that may become chronic, depending on predisposing
factors. The diagnosis of anti-social personality disorder
could be considered a predisposing factor. The VA
psychiatric expert further opined that the veteranís current
diagnosed bipolar disorder was not manifested during service
or within one year thereafter. She could identify no
relationship to the diagnosis of acute situational reaction
in 1977 or schizophreniform disorder in 1981. The physician
further found that the veteranís currently chronic
psychiatric disorder, diagnosed as bipolar disorder, was
secondary to years of misuse of alcohol, PCP, LSD, cocaine,
amphetamines and cannabis. She observed that all of these
substances could produce chronic psychotic states. The
veteranís underlying anti-social personality likely made him
vulnerable to the development of psychotic symptoms. The VA
psychiatrist hypothesized that the 1981 diagnosis of
schizophreniform disorder was in error, and that a more
accurate diagnosis may have been substance induced psychotic
disorder.
In a November 1998 letter to the veteran, a psychiatrist and
the chief of staff of a VA medical center, said he reviewed
pages 3 to 5 of a medical board report, apparently of
December 1980. The VA doctor said the veteran was diagnosed
with bipolar disorder, an illness of mood disturbance and the
issue was when the veteran first had symptoms of this
illness. The psychiatrist noted that the medical board
reported that the veteran refused to eat or drink for several
days and remained motionless for extended periods of time,
standing alone and not (?) acknowledging external events.
According to the doctor, the report indicated that the
veteran reported auditory hallucinations of a persecutory
nature. The VA psychiatrist said these statements were
consistent with a mood disorder and the final diagnosis of
schizophreniform disorder was further support of mood
disturbance in 1980. Additionally, the psychiatrist observed
that, in August 1976, the veteran was described as lonely,
depressed and drinking up to a quart of rum per day. Health
care providers confirmed alcohol abuse, anxiety, paranoid
ideation and immaturity. Noting his lack of access to the
original medical record of the veteranís 1976
hospitalization, the psychiatrist stated that the veteranís
symptoms were consistent with a mood disorder. Based upon
what he described as secondary information, the psychiatrist
concluded that the veteranís consistent mood disturbance
might have begun in 1976.
Analysis
According to 38 U.S.C.A. ßß 1110 and 1131, a veteran is
entitled to disability compensation for disability resulting
from personal injury or disease incurred in or aggravated by
service. ďA determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service.Ē Watson v. Brown,
4 Vet. App. 309, 314 (1993). Even if there is no record of
an acquired psychiatric disorder in service, its incurrence
in service will be presumed if it was manifest to a
compensable degree within one year after service.
38 U.S.C.A. ßß 1101, 1112, 1113, 1137; 38 C.F.R. ßß 3.307,
3.309. While the disease need not be diagnosed within the
presumptive period, it must be shown, by acceptable lay or
medical evidence, that there were characteristic
manifestations of the disease to the required degree. Id
Service connection may not be granted for disorders that are
considered to be congenital or developmental in nature,
including personality disorders. 38 C.F.R. ßß 3.303(c), 4.9
(1998).
The veteran has contended that service connection should be
granted for acquired psychiatric disorder. As the medical of
evidence of record shows, the veteran had long-standing drug
and alcohol problems that worsened during his second period
of service. No psychiatric disability was reported when he
was discharged in July 1977 and he received satisfactory
performance evaluations. When examined in 1978, by a service
psychiatrist, the veteran reported having a drinking problem.
No psychotic disorder was reported and he was found qualified
for service. Thereafter, in January 1980, the veteran
reported use of various drugs, including PCP, LSD and
alcohol. No schizophrenia was found on examination. Soon
after, the veteran went on unauthorized leave. He was gone
for nearly one year and, when found, reported chronic alcohol
use. Although schizophreniform disorder was diagnosed, the
December 1980 Medical Board report found it had occurred when
the veteran was on deserter status. Moreover, in January
1981, three months prior to his discharge, the
schizophreniform disorder was described as in remission.
Further, post service, subsequent hospitalizations from July
1981 through January 1984 were for treatment of substance
abuse, but no mood disorder or psychosis was diagnosed. In
1984 and 1985, VA hospital records included a diagnosis of
anti-social personality. No mood disorder or psychosis was
diagnosed. The veteran was evidently diagnosed with bipolar
disorder in approximately 1986 or 1987, nearly ten years
after his discharge from service.
In an August 1998 opinion, a VA psychiatrist concluded that
the veteranís currently diagnosed bipolar disorder was not
manifested during service or within one year thereafter. She
saw no relationship to his previous diagnosis of acute
situational reaction in 1977 or schizophreniform disorder in
1981. According to the psychiatrist, the veteranís current
chronic psychiatric disorder, diagnosed as bipolar disorder,
was secondary to years of misuse of drugs and alcohol, and
she noted that many of the substances he acknowledged taking
could produce chronic psychotic states. Further, the
physician observed that the veteranís underlying anti-social
personality likely made him vulnerable to the development of
psychotic symptoms. In the VA psychiatric expertís opinion,
the diagnosis of schizophreniform disorder made in 1981 was
in error, and a more accurate diagnosis may have been
substance induced psychotic disorder. Service connection for
disease or injury resulting from abuse of alcohol or drugs is
precluded or barred by 38 U.S.C. ß 101(16) and 38 U.S.C.
ß 105(a). Hall v. West, No. 95-757 (U.S. Vet. App. Sept. 29,
1998).
The Board is persuaded that the VA psychiatric expertís
opinion is most convincing in that she thoroughly reviewed
the veteranís entire medical record and recognized that there
was evidence of substance abuse in his first period of
service that progressively worsened in his second period of
service and led to the psychotic disorder, manifested in
1981, that was more properly diagnosed as substance induced
psychotic disorder. Where a medical expert has fairly
considered all the evidence, her opinion may be accepted as
an adequate statement of the reasons and bases for a decision
when the Board adopts such an opinion. See Wray v. Brown, 7
Vet. App. at 493. The Board does, in fact, adopt the VHA
psychiatristís opinion on which it bases its determination
that service connection for an acquired psychiatric disorder
is not warranted.
In defense of his claim, the veteran offers the November 1998
statement of a VA psychiatrist whom he asked to review three
pages of, apparently, the December 1980 Medical Board report.
However, that doctor acknowledged his lack of access to the
original medical records and reliance on secondary
information, but, nonetheless, opined that the veteranís
symptoms were consistent with a mood disorder.
While the conclusions of a physician are medical conclusions
that the Board cannot ignore or disregard, see Willis v.
Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess
medical evidence and is not compelled to accept a physicianís
opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992).
Although on an initial review, the VA physicianís November
1998 statement appears to support the veteranís claim, a
close reading shows that it does not. His opinion is both
equivocal and speculative and, at most, does little more than
propose that the veteranís symptoms were consistent with a
mood disorder and it was possible that the veteranís mood
disturbance may have begun in 1976. He does not factually
establish or explain the sequence of medical causation using
the facts applicable in the veteranís case. Such speculation
is not legally sufficient to establish service connection.
Service connection may not be predicated on a resort to
speculation or remote possibility. 38 C.F.R. ß 3.102 (1998).
See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992)
(evidence favorable to the veteranís claim that does little
more than suggest a possibility that his illnesses might have
been caused by service radiation exposure is insufficient to
establish service connection); Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992). The Board notes that, the veteran has
indicated that the Social Security Administration (SSA)
evidently found him to be disabled since approximately 1991.
While the exact nature of the veteranís disability (or
disabilities), for SSA purposes, is unclear and may include
his acquired psychiatric disorder, nevertheless, it has not
been averred that the SSA decision or records supporting such
decision serve to establish that the claimed condition had
its onset in service or is otherwise related thereto.
Accordingly, as it has not been shown that the veteranís
acquired psychiatric disorder, a bipolar disorder, was
related to the 1977 acute situational reaction or 1981
schizophreniform disorder in service, or manifested to a
compensable degree within one year of his discharge, service
connection for an acquired psychiatric disorder must be
denied. 38 U.S.C.A. ßß 1101, 1110, 1112, 1113, 1131, 1137;
38 C.F.R. ßß 3.303, 3.307, 3.309. The evidence is not so
evenly balanced that there is doubt as to any material issue.
38 U.S.C.A. ß 5107.
ORDER
Service connection for an acquired psychiatric disorder is
denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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